Based on Observations
Category > Based on Observations
Police lacked probable cause to search the car after seeing a baggie containing marijuana in the center console.An officer testified that he saw a clear plastic baggie containing a leafy substance in the center console of defendant’s car. There was no testimony as to whether it may have contained more than 28.5 grams for purposes of Prop 64. There was also no evidence of an open container. Under the circumstances, the police lacked probable cause to search the car.id: 27108
Odor of marijuana and the observation of a small amount in a baggie in the center console did not provide probable cause to search the car.The odor of marijuana in a plastic baggie knotted at the top in defendant’s parked car did not provide probable cause to justify a search of the car. Pre-Prop 64 case law did not apply to the search. Moreover, the good faith exception to the exclusionary rule did not apply because there was no binding law specifically authorizing the search when it occurred.id: 26882
Removal of the dashboard console exceeded the scope of the inventory search, but the search was supported by probable cause.A deputy who initiated a traffic stop found four baggies containing white powder under the driver’s seat during an inventory search. The subsequent removal of the dashboard console exceeded the scope of the inventory search. However, the officer also noticed the dashboard console had been tampered with so that fact along with the discovery of the baggies under the seat provided probable cause to search the console.id: 25478
The police had no probable cause to detain defendant in his house even though they properly confronted another person acting suspiciously in the driveway. Police properly confronted a person acting suspiciously (stripping copper wire from an air conditioner) in front of a house. This was a legitimate consensual encounter. From there the police entered, the house, believing there might be a burglary in progress. But police had no facts suggesting the occupant of the house, defendant, was a burglar rather than a resident. And they made no effort to find out until after they detained him. The police had no probable cause to detain defendant in his house and the trial court erred by denying his motion to suppress the fruits of the unlawful detention.id: 23790
A warrantless search cannot be justified based on smell alone.Defendant consigned a sealed package to Federal Express for shipment. The package reeked of marijuana. Fed Ex notified the police who seized the package and later opened it at the police station. The police did not seek a warrant even though no exigent circumstances existed at the time of the search. However, the warrantless search was not justified based on smell alone, and smelling something is different from seeing something. The trial court erred in denying the motion to suppress. id: 22452
Officer's reliance on "pedestrian in the roadway" provision was nothing more than a ruse to stop and search defendant. The police officer lacked probable cause to stop defendant for being a "pedestrian in the roadway" in violation of Vehicle Code section 21954, subd.(a). That provision does not prohibit being in a crosswalk when a car is on the road. It requires that he use a high degree of care in that situation. The officer saw defendant three-quarters of the way through an intersection, which had no crosswalk but was controlled by stop signs. The only visible vehicle was the police car which was not an immediate hazard to anyone. The officer's reliance on section 21954, subd.(a), was nothing more than an impermissible ruse to
stop and search the defendant.id: 19116
There was insufficient probable cause to arrest a passenger in a lawfully stopped vehicle where potentially stolen property was in plain view in the seat behind the driver.The mere presence of a passenger in a vehicle lawfully stopped for a traffic violation and which contained in plain view behind the driver's seat personal property which possibly could have been stolen from unknown vehicles at some specified time does not constitute probable cause to arrest the passenger for vehicular burglary or receiving stolen property.id: 15612
Updated 9/24/2023Possession of drugs and a gun by a gang member after leaving a home provides probable cause to believe he got these items from the house.Defendant argued the search warrant lacked probable cause for the search of his house. Contrary to defendant’s claim, the personal possession of drugs and a gun by a gang member after being in a house for three to five minutes provides probable cause to believe he got those items from the residence he was visiting.id: 27991
Updated 6/19/2023Police had probable cause to search the car under the automobile exception where they smelled burnt marijuana approaching the car and recognized the occupants to be minors.When officers approached a car because of the expired registration, they smelled burnt marijuana. One of the officers recognized the occupants of the car as minors due to a prior encounter, and it is illegal for a person under 21 to possess recreational marijuana. Notwithstanding the passage of Prop 64, which legalized marijuana possession for adults, the officers had probable cause to search the car under the automobile exception to the search warrant requirement, despite the occupants’ claim that they had smoked the marijuana hours earlier.id: 27613
Officer who smelled strong odor of marijuana in a car parked in a high drug area had probable cause to search the car. An officer in a high crime, high drug activity area saw defendant leaning into an open passenger’s side door, and he walked away as the officer approached. The officer opened the driver’s door and noticed the strong smell of fresh marijuana that was inconsistent with the driver’s explanation that he had recently smoked in the car. Based on the officer’s experience, he believed the nervous driver was lying. The officer had probable cause to search the car for an unlawful quantity of marijuana, and he was authorized to search closed containers in the car, including defendant’s backpack. id: 27321
Search of a car’s passenger was justified by the presence of a bag of marijuana plainly visible on the passenger’s person.The presence of an unsealed bag of marijuana plainly visible on the passenger’s person constituted probable cause to support the search of the passenger’s purse. id: 26981
Officer’s testimony regarding the surveillance videos was not hearsay, did not rely on authenticated writings and helped establish probable cause for the warrentless arrest.Defendant argued the arresting officer’s testimony regarding the robbery surveillance videos was inadmissible and insufficient to establish probable cause for the warrantless arrest of the defendants. First, the officer’s testimony was not hearsay because it was offered only to show the information he relied on when arresting defendants. Moreover, the videos were properly authenticated as they came from robbery case files or were obtained from the location of the robberies, which is circumstantial evidence that the videos depict the robberies under investigation. Finally, the videos helped the officer identify the defendants and helped establish probable cause for the warrantless arrest.id: 26246
Dog sniff of truck bed was proper where the dog was well-trained and the alert justified a search of the backpack and the dog’s subsequent sniff of the pickup truck’s bed.A well-trained detection dog’s sniff of the exterior of a pickup truck does not constitute a search for Fourth Amendment purposes. Defendants argued the prosecution failed to prove the dog used in the present case was reliable. Contrary to the defendant’s claim, no evidence of the dog’s success rate was required. Morever, the alert from the dog established probable cause to search the backpack found in the truck. Finally, the dog did not exceed the allowable scope of a dog sniff by putting his paws on the pickup truck and sniffing inside the bed of the truck. This was an instinctive action which followed the original detection from a point outside of the truck. id: 22318
Police had probable cause to arrest defendant for weapon possession with intent to assault where he was holding a brick and someone in a group said “He’s over there”, even though there may have been an innocent explanation. The police had reasonable cause to arrest defendant after observing him with an object (a brick) which could have been used as a deadly weapon, and after he heard someone shout “He’s over there” suggesting the group intended to use the brick to hurt someone. The investigator’s knowledge that defendant was a gang member supported the conclusion. At that point, the police had probable cause to arrest and it did not matter that there may have been an innocent explanation including the possibility that defendant and his group were chasing a rabbit or playing a game. id: 21819
Officers who found contraband in plain view in the automobile had probable cause to search the trunk.Officers who lawfully stopped the vehicle determined a passenger to be a drug dealer, and noticed marijuana in plain view. Under the circumstances, the officers had probable cause to believe they might find additional contraband in the trunk of the car. The court erred in granting the motion to suppress the evidence found in the trunk.id: 18796
There is no requirement that the officer whose personal observations were relied upon to establish probable cause actually testify to the observations.Defendant argued the court erred at the suppression hearing by failing to strike the hearsay testimony of two of the investigating officers. The Harvey-Madden rule precludes the prosecution from relying on hearsay information communicated to the arresting officer which is not sufficiently specific and fact based to be considered reliable. Here, the prosecution adequately showed the reliability of the information derived from the wiretap investigation and related surveillance. Moreover, the court's ruling did not violate defendant's confrontation clause rights as the defense could have called and cross-examined the non-testifying officers.id: 17816
Fresh marijuana clippings in defendant's trash furnished probable cause to obtain a search warrant.The presence of fresh marijuana clippings in defendant's trash outside his house furnished probable cause to obtain a warrant to search the house.id: 17253
Probable cause established curfew violation where youth was found loitering in front of a market.Evidence supported the juvenile court's finding that there was probable cause to establish a curfew violation. An officer responded to a dispatch report that juveniles were loitering in front of a market trying to recruit adults to buy them beer. When he arrived he saw defendant in front of the store. Defendant appeared to be under the curfew age, and he quickly provided his name and birth date which confirmed the officer's suspicion. The officer was not required to establish that none of the curfew exceptions applied. Moreover, since the minor was arrested, a full body search was authorized.id: 15611
Defendant's association with a premises where illegal conduct was occurring plus later furtive movements provided probable cause to search or arrest.Officer observed defendant leave an apartment the officer believed was being used to sell rock cocaine (shortly before defendant arrived at the apartment a man seen leaving the apartment was arrested for possession of rock cocaine). As the officer approached defendant's car he observed the defendant pass a zip lock bag to the passenger who threw the bag to the floor. Under the circumstances, the officer had probable cause to arrest and search the defendant.id: 10950
Evidence of telephone calls between bookmakers established probable cause.The evidence of telephone traffic and its interpretation by an experienced officer as consistent with bookmaking activity, coupled with defendant's criminal record, established probable cause for the issuance of a search warrant.id: 10951
Evidence supported the probable cause finding where the officers in plain view saw the distinctively shaped and wrapped kilos of cocaine in the open car trunk.Substantial evidence supported the magistrate's finding there was probable cause to detain appellants before they entered the apartment complex to detain appellants and investigate the suspicious narcotic trafficking circumstances. The officers were entitled to climb the wrought iron fence and enter an open carport area where the Buick was parked. Even if climbing the fence was a simple trespass, it would not have invalidated the officers subsequent observations. Seeing the distinctively shaped and wrapped kilos of cocaine in the open trunk was not a search since the kilos were in plain view. If not before, certainly then, the officers had probable cause to arrest appellants and search the car trunk.id: 10952
Officer had probable cause to arrest defendant he knew to be a drug dealer where defendant handed his companion a small object he put in a cigarette case and defendant appeared nervous as he approached the patrol car.The officer had substantial experience with drug transactions and, based on his experience, concluded that defendant was selling drugs to his companion, when standing at the side of a house in an area known for drug transactions, he handed him a small object which the companion, in turn, secreted in a cigarette case which he then placed in his pocket. The officer had also recently arrested defendant for selling drugs. A reasonable person would strongly suspect defendant was selling drugs. Any doubt was resolved by defendant's demonstrated consciousness of guilt as he kept looking around and appeared nervous. The officer had probable cause to arrest and the search incident to the arrest was lawful.id: 10953
Officer had probable cause to arrest appellant when he saw appellant and a third party attempt to exchange money for a plastic bag and separate when someone shouted police.An experienced narcotics officer saw an attempted exchange of money for a plastic bag in an area known for street drug transactions. He was in police uniform and heard a third person shout police. He knew it was common for street dealers to use lookouts to warn of police presence. Following the shout the exchange broke off and appellant placed the bag in his pocket. The officer had probable cause to believe a drug transaction was in progress and arrested appellant.id: 10954
Officer had probable cause to arrest appellant who had a rolled up baggy protruding from his front pocket.Officer saw one-half inch of a cylindrical rolled-up clear plastic baggy protruding from defendant's pocket. The packaging was known to the officer to be commonly used for drugs and a sandwich could not have fit in his front pocket. Officer also properly considered defendant's recent admission of drug use, deteriorating physical condition and unlikely explanation for his presence on the street. Under the circumstances the officer had probable cause to arrest appellant for narcotics possession.id: 10955
Officer's statement that the clipped wires indicated there was a good chance the stereo was stolen, was more than a mere suspicion.Officer testified that the cut wires were consistent with the stereo being stolen from a vehicle and that he thought there was a good chance the stereo was stolen based on the way the wires had been clipped. Appellant argued the phrase good chance did not amount to probable cause. However, the court held the officer's statement indicated that he had more than a mere suspicion, and that he had probable cause.id: 10956
Officers' observation of kilo-shaped objects bulging against the trash bags supported the probable cause finding.Evidence supported the court's finding that the officers had probable cause to believe the trash bags in the van contained contraband. The criminal significance of the beeper call to a public pay phone, counter-surveillance driving, and the car switch as a means of conducting a drug transaction was fully explained by experienced officers. Suspicions of criminal activity were fully corroborated by observation of distinctive kilo-shaped objects bulging against the trash bags. The ability of the officers to distinguish the shapes through the skin of the trash bags was a question of fact resolved favorably to the People by the court after hearing officers testify to their experience in having seen these distinctive shapes hundreds of times in connection with cocaine transactions.id: 10957
Probable cause to search existed where officers observed a prescription bottle and baggies in a car in a high drug area where occupants of the car ducked up and down.The sight of a prescription bottle and a bundle of small baggies in a car registered in Los Angeles and parked for some time in a high drug area in Sacramento, in which there were four males observed ducking up and down, only one of whom had identification, and who professed to be in town to visit a friend who lived 30 minutes away, gave the officer probable cause to believe the car or a container in it held contraband.id: 10958
Purchase of a large quantity of freon, which is used in the manufacturing of methamphetamine under a false name and delivery to a remote area established probable cause for a search warrant.Defendant argued that his purchase of 400 pounds of freon, which is not a controlled substance, and his drive to a remote neighborhood in the foothills with the freon was not sufficient to support the issuance of a search warrant. Despite freon not being a controlled substance, it is unlikely an individual would have a legitimate use for such a large quantity. This large quantity of freon purchased under a false name, in conjunction with the remoteness of defendant's property and the magnitude of the prior freon purchases, supplied a degree of suspicion sufficient to support a finding that it was fairly probable evidence of methamphetamine manufacturing would be found.id: 10959
Weapon search was justified where officer in a high crime area saw a properly detained driver reach under the seat and heard the sound of metal on metal.Officers stopped a car in a high crime area after noticing it had expired registration tags. As the officer approached the car, he saw defendant reach under the driver's seat and he heard the contact of metal on metal. The totality of the circumstances justified the subsequent weapons search.id: 10960
California Highway Patrol officer's reliance on the detaining officer's statement that defendant was weaving like a snake provided reasonable cause to believe defendant was driving while intoxicated for purposes of the DMV proceeding.The Department of Motor Vehicles suspended defendant's driver's license following an administrative hearing under Vehicle Code section 13558. Defendant was detained by a deputy sheriff who then called the California Highway Patrol and the CHP officer made the arrest. Defendant argued the only evidence in support of the essential finding that the officer had reasonable cause to believe defendant was driving while intoxicated, was the hearsay statement in the CHP officer's report that the deputy sheriff saw defendant weaving like a snake. However, the statement was not hearsay because the question was not whether defendant was driving under the influence but whether the officer had reasonable cause to so believe. The CHP officer's reliance on the sheriff's statement was reasonable and the statement constituted substantial evidence supporting the finding that the arresting officer had reasonable cause to believe defendant was driving while intoxicated.id: 10560
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
The case of the day summarizes a current case and is viewed by lawyers and judges around the state every day.
Geofence search warrants were impermissibly overbroad and violated the particularity requirement of the Fourth Amendment but the good faith exception applied and suppression was not required.Defendants were identified as murder suspects after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as the victim on the day of the murder. The geofence warrants complied with the California Electronic Communications Privacy Act of 2016 (Cal ECPA) but they violated the particularity requirement of the Fourth Amendment and were impermissibly overbroad as the warrants placed no meaningful restrictions on the police search. However, suppression of the evidence was not required where the officers reasonably relied on the new geofence warrant in good faith.id: 27850